to Hegel what we seek to attain through law is the possibility of liberty. Morals determine not what is externally possible but what internally ought to be. So law and morals are in contrast as the possible of external realization and the internally obligatory. The opposition disappears in the highest unity of the ethical social habit which obtains in an association such as the family or civil society.27 This is a metaphysical way of putting what sociological jurists put by saying that law and morals are agencies of social control.
In the latter part of the nineteenth century, as abstract individualist theories begin to be replaced by theories which proceed not upon a principle of individual independence but upon a basis of the social interdependence of men, attempts to oppose or to contrast law and morals are given up and we come upon a new phase of attempts to subordinate law to morals.
This begins with Jellinek as far back as 1878. Law, he said, is a minimum ethics. The field of law is that part of the requirements of morals observance of which is indispensable in the given stage of social development. By “law” here (Recht) he meant law as we try to make it; the idea of law. The actual body of legal precepts may fall short of or in places or at times may go beyond this ethical minimum. The field of law is only a part of the field of ethical custom, namely, the part which has to do with the indispensable conditions of the social order.28 As distinguished from law, morals include only the excess beyond the indispensable minimum. This excess, desirable but not indispensable, he terms an “ethical luxury.” The minimum represents what we may expect to give effect to through legal precepts.29 In a broader view morality is made to embrace the whole. In this doctrine there are characteristic features of the nineteenth century. It assumes that the scope of law is to be held down to the smallest area possible. This was a postulate of metaphysical jurisprudence. Law was thought of as a systematic restriction of freedom in the interest of free individual self-assertion. It was necessary and yet was in some sort an evil, and was not to be suffered to extend itself beyond what was obviously necessary.30
Turning to the social philosophical jurists of the end of the last and fore part of the present century, to Jhering the immediate task of the law is to secure interests—claims or wants or demand. We must choose what interests we will recognize, fix the limits within which we will recognize them, and must weigh or evaluate conflicting or overlapping interests in order to secure as much as we may with the least sacrifice. In making this choice, in weighing or valuing interests, whether in legislation, or in judicial decision, or in juristic writing, he maintains that we must turn to ethics for principles. Morals is an evaluation of interests. Law is or seeks to be a delimitation in accordance therewith.31 Thus we come back in substance to a conception of jurisprudence as on one side a branch of applied ethics.32
Again, as Stammler, the leader of the Neo-Kantians put it, we seek justice through law. But to attain justice through law we must formulate the social ideal of the epoch and endeavor to insure that law is made to advance it and secure it in action. These ideals are developed outside of the law. They are moral ideals and so jurisprudence is dependent upon ethics so far as ethics has to do with these goals which we seek to attain and with reference to which we measure legal precepts and doctrines and institutions in order to make them agencies of progress toward the goals, while jurisprudence has to do rather with the means of attaining them.33 Although he insists on separation of jurisprudence from ethics and that each must have an independent method,34 he comes finally to the proposition that “just law has need of ethical doctrine for its complete realization.”35
According to Kohler, the leader of the Neo-Hegelians, government, law, and morality are forces working toward the attainment of an ideal of civilization. So jurisprudence “must appreciate these ideal ends toward which society strives.”36 Perhaps he alone of the leaders of philosophical jurisprudence in the fore part of the present century did not more or less avowedly go back in some degree to subordination of jurisprudence to ethics. Law and morals, he taught, express and also further a progressive civilization.37 Hence jurisprudence and ethics are both subordinated to a universal history of civilization and to a philosophy of right and economics from which we determine the jural postulates—the presuppositions as to right conduct—of the civilization of the time and place.38 More than one contemporary book on ethics, however, presupposes very nearly what he called for39 and the practical result is to make jurisprudence more or less dependent on a science which a modern type of ethical philosophers would be likely to claim as theirs.40
After the first World War the dominance of Neo-Kantian thinking in the social sciences and stress upon methodology led to a revival of the nineteenth-century contrasting of law and morals and cutting off of jurisprudence from ethics. Thus Radbruch holds that law and morals are an irreducible antinomy;41 that legal precepts and moral precepts coincide only by chance;42 and that the problem of values is wholly outside the science of law. Kelsen, in the same way, and from a Neo-Kantian starting point, holds that all we have to consider is “that it is laid down in a rule of law, as a condition of a specific result, that the positive legal order react to that behavior with an act of coercion.”43
Nineteenth-century analytical views of the relation of law and morals were strongly influenced by the assumption of the separation of powers as fundamental for juristic thinking, not merely a constitutional device. Accordingly assuming an exact, logically defined separation of powers, the analytical jurist contended that law and morals were distinct and unrelated and that he was concerned only with law.44 If he saw that their spheres came in contact or even overlapped in practice, he assumed that it was because while in a theoretically fully developed legal system judicial and legislative powers are fully separated, this separation has not been realized to its full extent in practice. So far as and where this separation was still incomplete there was confusion of or overlapping of law and morality and morals. He saw four such points of contact: (1) in judicial lawmaking or law finding, (2) in interpretation of legal precepts, (3) in application of legal standards, and (4) in judicial discretion. At these four points, he considered, there was a border zone, where the separation of powers was not complete. So far as the separation of judicial and legislative functions was complete, law was for courts, morals and morality were for legislators; legal precepts were for jurisprudence, moral principles were for ethics. But so far as the separation was not yet complete, and in what he took to be the narrowing field in which judges must make as well as administer legal precepts, morality had to stand for the law which ought to but did not exist as the rule of judicial determination.45
It was natural that Austin should have thought of judicial decision as turning precepts of “positive morality” into legal precepts since he could see some such process actually taking place in the work of the Judicial Committee of the Privy Council in appeals from newly settled areas in which the British were setting up courts for the first time.46 A like situation arose later in a case where a succession was governed neither by English nor by Hindu nor by Mohammedan law. Lord Westbury said that it must be determined “by the principles of natural justice.”47
With such cases before them we may understand how the first English analytical jurists like the historical jurists, thought that judicial making or finding of law was no more than a reaching out for precepts of positive morality and in the absence of authoritative grounds of decision giving them the guinea stamp of precedent. But the doctrine that morals were to be looked to only in an immature stage of legal development before the separation of powers is complete involves two other false assumptions, one, the possibility of a complete analytical separation of powers, the other, the possibility of a complete body of legal precepts which will require no supplementing and no development by judicial action.
Yet granting that these two assumptions are not well taken we do not wholly dispose of the contention of the analytical school. For there is a difference of the first moment between legislative lawmaking and judicial lawmaking. The legislative lawmaker is laying down a rule for the future.48 Hence the general security does not require him to proceed on predetermined premises or along predetermined
